Page:Harvard Law Review Volume 10.djvu/244

218 2l8 HARVARD LAW REVIEW, other class of obligations, and this the author expressly recognizes, when he says : " A true contract . . . exists as an obligation be- cause the contracting party has willed^ in circumstances to which the law attaches the sanction of an obligation, that he shall be bound." ^ All legal obligations, contractual or otherwise, possess that sanction or else they cease to be legal. In this view, the phrase "imposed bylaw," being applicable to all obligations of judicial cognizance, ceases to be a valid mark of distinction among any of them, and we are driven to find some other characteristic wherewith to account for the learned author's division. The only distinction which he even indirectly suggests is the element of mutual assent, present in contractual obligations, but absent in all others. If, therefore, I have rightly grasped the author's mean- ing in the phrase " imposed bylaw," it would seem that it is inade- quately used in this supposed classification and that the terms consensual and non-consensual are the more exact expression of his antithesis. On the other hand, the law may be considered as a source of legal obligations in contradistinction to the will of the parties, and that may be the meaning of the words, " imposed by law." This notion of the law as itself a source of obligation is not very definite and the author certainly does not expressly set it forth. It seems, however, to be hinted at in such a phrase as this consent of the defendant ;"2 but since the author has used it with- out explanation, except as antithetically opposed to the notion that consent is a source of obligation, and has evidently regarded the two as exhaustively dividing obligations in general, I am forced to believe that by obligations imposed by law no more is meant than obligations not resting upon consent. If that be so, then again an antithesis that would more clearly conform to his thought would be an antithesis between consensual and non-consensual obligations. It may be insisted, however, that the law is as valid a source of obligation as is the will of the parties and, therefore, equally valid as a criterion of classification, and that in spite of any evidence to the contrary, the phrase " imposed by law " may thus have a posi- tive content of meaning and not the merely negative or exclusionary content which I have indicated. The objection is certainly valid 1 Page 4. See also Prof. Langdell's article on Equity Jurisdiction, i Harvard Law Review, at p. 56, and n. i. 2 Page 15.
 * the obligation is imposed by operation of law, regardless of the